New Energy Economy, the Center for Biological Diversity, and WildEarth Guardians Request Produced Water Hearing Be Cancelled and Refiled

Citing a 1980, New Mexico Supreme Court Decision relative to “want of jurisdiction,” New Energy Economy, the Center for Biological Diversity, and WildEarth Guardians filed a motion late Friday afternoon requesting that the Water Quality Control Commission (“WQCC”) cancel the hearing scheduled to begin tomorrow regarding a controversial proposal by Governor Michelle Lujan Grisham and James Kenney, her Secretary of the Environment Department to allow the use of produced waste water from fracking used in oil and gas extraction.

The motion also asks that each commissioner file the financial disclosures required under NMSA 1978, § 74-6-3(B), and that NMED, in consultation with stakeholders, reissue a proposed rule and petition for hearing. 

Another petitioner, Nicholas Maxwell, filed a motion on April 16, 2024, to disqualify several members of the WQCC because they had not filed financial disclosures.

“We are asking the Commission to uphold New Mexico law, file their financial disclosure as is required by law and then consider the issuance of a science-based rule prohibiting treated or untreated produced water discharge, disposal and reuse for any entity, including via any federal permit, off the oil field,” said Mariel Nanasi, Executive Director, New Energy Economy. 

The groups stated in their press release, “Obviously concerned about the influence of big O&G money, the legislature requires that the WCQQ members file financial disclosure statements with the Secretary of State before taking any actions whatsoever.

A press release from the groups filing the motion cited the following state statute and further comments:

Section 74-6-3(B) states:

B. A member of the commission shall not receive, or shall not have received during the previous two years, a significant portion of the member’s income directly or indirectly from permit holders or applicants for a permit. A member of the commission shall, upon the acceptance of the member’s appointment and prior to the performance of any of the member’s duties, file a statement of disclosure with the secretary of state disclosing any amount of money or other valuable consideration, and its source, the value of which is in excess of ten percent of the member’s gross personal income in each of the preceding two years, that the member received directly or indirectly from permit holders or applicants for permits required under the Water Quality Act. A member of the commission shall not participate in the consideration of an appeal if the subject of the appeal is an application filed or a permit held by an entity that either employs the commission member or from which the commission member received more than ten percent of the member’s gross personal income in either of the preceding two years.

None of the appointed WQCC members filed their respective financial disclosure statements after their appointment and prior to making the decision on January 9, 2024 to hold a hearing in this Fracking Waste Reuse Rule case. 

“The law is clear: if a decisionmaker presides over a case without authority to do so, jurisdictional error is committed, which can be raised at any time, even after judgment and on appeal.  In re Estate of Kemnitz, 1981-NMCA-013, ¶ 7, 95 N.M. 513.  

“The Commissioners must comply with the law and file the required financial disclosures with the Secretary of State prior to performing any official duties, including the appointment of a hearing officer and initiation of rulemaking proceedings. 

“Movants are concerned that to do otherwise would create a serious issue on appeal which would delay this important rulemaking, possibly for years.”  

The parties moving to cancel the WQCC meeting state at the end of their motion that they had reached out to “other parties to obtain their position on this Motion before filing and can report as follows: Select Water Solutions takes no position on the disqualification issue, but it does not oppose the requested cancellation of the hearing. NMOGA takes no position on the disqualification issue but supports the request to cancel the hearing. NMED opposes the Motion. No other party provided their position before the filing of this Motion.